of terrorism, because the systematic practice of the Police consisted in taking the statements of the
detainees after they had been detained for several days, during which time it was virtually
impossible for the lawyers to meet with their clients.” Moreover, the CVR concluded that the
meetings between the detainees and their lawyers “were normally supervised and overheard by
police agents.” 312
204. In this regard, J.’s mother and Emma Vigueras indicated that Ms. J. was kept in total
incommunicado, that only one lawyer had been able to see her but without being able to talk to her
in private. 313 Emma Vigueras also indicated that “in this context of ‘incommunicado,’ the only
opportunity she had, as a lawyer, […] to talk to her clients was when the detainees made their
statement to the police; in other words, in the presence of the prosecutor and of the police who
questioned the detainee officially. The lawyers were not allowed to have private conversations with
those they were defending.” 314 Similarly, she indicated that, between May and September 1992,
during the preliminary investigation stage of the proceedings, “the lawyers were prevented from
having any contact with their clients who were in complete incommunicado,” and as of October
1992, “when access to [their] clients was established to some extent […], this was extremely
restricted and in degrading conditions. The timing was limited and the visit took place in a small
room, […] with no privacy.” 315
205. The Court underlines that a literal reading of Article 8(2)(d) of the Convention reveals that
“everyone had the right to communicate freely and privately with his defense counsel.” Moreover,
the Court has emphasized that it is not sufficient that the accused has a defense counsel to
guarantee his right to defend himself, but the effective exercise of this defense must be ensured by
providing adequate time and means for its preparation. 316
206. In the instant case, the Court finds that it has been proved that Ms. J. was unable to meet
with her lawyer in private, and that when she met her, this was under the strict supervision of the
State authorities. Peru has failed to justify to this Court that “the confidential nature of the
proceedings” constituted a valid restriction of these rights. Although the State must ensure the
success of the investigations and the punishment of those found guilty to the greatest extent
possible, the power of the State is not unlimited, so that it must act within the limits and in
accordance with procedures that permit preserving both public safety and the fundamental rights of
the individual. 317 Consequently, if a State finds it necessary to restrict the right to defend oneself, it
must do so in keeping with the principle of legality, present the legitimate objective that it seeks to
achieve, and prove that the means used to this end is suitable, necessary and strictly proportionate.
To the contrary, the restriction will be contrary to the Convention. 318
207. In the instant case, the State has not argued that the restrictions to Ms. J.’s right to defend
herself during the first stage of the proceedings against her were established by law. In addition,
312
Report of the Truth and Reconciliation Commission, volume VI, chapter 1.6, pp. 398 and 421.
313
Cf. Affidavit prepared by J.’s mother on June 13, 2006, for the case of the Miguel Castro Castro Prison (file of annexes
to the motions and arguments brief, annex 1, folio 3000), and Sworn statement made by Emma Vigueras on May 15, 2000 (file
of annexes to the motions and arguments brief, annex 2, folio 3009).
314
Sworn statement made by Emma Vigueras on May 15, 2000 (file of annexes to the motions and arguments brief,
annex 2, folio 3009).
315
Sworn statement made by Emma Vigueras on May 15, 2000 (file of annexes to the motions and arguments brief,
annex 2, folio 3011).
316
Cf. Case of Palamara Iribarne v. Chile, supra, para. 170, and Case of Cabrera García and Montiel Flores v. Mexico,
supra, para. 156.
317
para. 53.
318
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 154, and Case of Barreto Leiva v. Venezuela, supra,
Cf. Case of Barreto Leiva v. Venezuela, supra, para. 55.
62
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos